Sydney Morning Herald columnist

Travelling on public transport can be traumatic. Particularly if you're the ABC newsreader Jeremy Fernandez with his young daughter on a Sydney bus, subjected to the racist rantings of an unhinged banshee. A French woman singing on a Melbourne bus was subjected to a similar tirade, but in that case it seemed to be more of a mob onslaught.

The law says people are not supposed to offend, insult, humiliate or intimidate because of someone's race, colour or ethnic origin - in public, of course; at home you can pretty much be as vile as you like.

The previous attorney-general, Nicola Roxon, had been howled down because she suggested in an ''exposure draft'' of a new anti-discrimination bill that those terms should apply across the board in all cases of discrimination by means of ''unfavourable treatment''.

Free-speech champion Tony Abbott has promised to repeal this part of the Racial Discrimination Act in its current form.

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The new Attorney-General, Mark Dreyfus, says he'll be agonising over getting the balance right between free speech and ''protecting the community''.

The ABC chairman, James Spigelman, said in a speech in December to the Human Rights Commission that words such as ''offend'' and ''insult'' go too far, that they impinge on freedom of speech in ways that words like ''humiliate'' and ''intimidate'' do not.

Presumably he means the free speech protection goes a notch higher if the basic requirements of anti-discrimination protections are at the humiliation and intimidation end of the nastiness spectrum.

We're playing here with the English language and the distinctions are not always visible. In every case the line between insult and humiliation may not be clear.

But Spigelman is surely right when he says, ''there is no right not be offended''.

The long-serving Melbourne media lawyer Peter Bartlett recently said in an interview that ''the present anti-discrimination legislation we've got is a significant problem for the media''. He told the Gazette of Law & Journalism (interest disclosure: publisher is moi) that he's had to deal with discrimination complaints claiming that articles on paedophilia vilify all Catholics.

A newspaper report about a Turkish man's run-in with police has prompted a complaint that all Turks are vilified.

The Australian Financial Review had complaints from Italians in Melbourne over a drawing by Michael Fitzjames of the map of Italy which he called Berlusconia with the major cities given names like Necappi, Ponzi, Pestilenti, Spivi and so on.

It went on an on and cost the paper an enormous amount of time, energy and money. Interestingly, this case was brought under Victorian legislation, which deals with hatred and serious contempt - not offence or insult. Even at that higher standard, it still took ages to reach settlement.

Bartlett said: ''Some of these complaints are ludicrous. There are more and more of them. Regulatory authorities are not looking at them and saying 'This clearly has no merit and should be dismissed.' It is very frustrating.''

It's probably an unreasonable expectation that the number of ludicrous complaints will drop off if the law gets rid of ''offend and insult'' and just sticks with ''humiliate and intimidate''. Maybe, the Italians, Turks or Catholics will feel the humiliation rather than the offence.

While Abbott has pledged to get rid of ''offensive'' he, in his own defamation case with Peter Costello and their wives against Random House over the Bob Ellis's book Goodbye Jerusalem, was happy to be compensated for an even lower level of grief - ''hurt feelings''.

Hurt feelings are enough for Abbott to go running to the law but he won't allow anyone to seek a remedy for being offended or insulted.

In his free speech address last August he thought that the ancient common law offences of ''incitement and causing fear'' should be enough grounds for a racial vilification case.

It's not certain but he seemed to be saying that racial vilification should be left to common law, which means unelected judges. The usual tub-thumpers and guardians on the right have remained eerily silent.

Where will all this end up?

All this flag waving about free speech in Australia is nice but a bit weird. We've never been a free speechy sort of country. As the media knows, we've been an expensive speech country. Take free speech too much to the bosom and you end up like the US of A, where the First Amendment says it's OK to sell videos of small animals being crushed to death, or to strike down laws that restrict massively rich individuals and corporations buying elections.

There was a rather confusing segment about anti-discrimination laws on last Monday's Q and A.

The shadow attorney-general, George Brandis, said: ''I don't for a moment abate from my view that it's not the role of government to impose prohibitions on what people in a peaceful and orderly way are allowed to say and think.''

It sounds good but if the people of the buses were delivering their thoughts to Fernandez and the French woman in a peaceful and orderly way, as opposed to an intimidatory fashion, would it be all right?

The whole thing is fraught. Finding balances, lines in the sand and the right shades of grey will be a hard task for this raw-boned Parliament. In the meantime be careful on the buses.

67 comments

I'm sure my forebears who built this country into what we have today were made of sterner stuff. "Soft" is not an option - is a quality that's going to be a target, - and is not to create a storm in a teacup over. Real heroes walk away - to tell the tale another day. You really do have to be clever enough to realise "where it's coming from" and judge it for "what it is".Please let's get off this train of "moral indignation". Surely we have bigger ideas to dream up. And should be working harder to achieve some worthwhile goals. Don't waste your time on the bad stuff - it's petty.

Commenter

A bit fed up with it

Date and time

February 15, 2013, 3:54AM

But even in pioneering times White British/European/American settlers may have held greater moral conviction, of a certain kind, than most Australians today. They were forcing their values, ground in European Christian mores, upon Indigenous Australians, people who lived in an entire different way. Watching the previous episode of Q&A, I had to totally disagree with Senator George Brandis (see his quoted words). In my opinion, Mr Brandis should be very careful about his dialogue concerning freedom of speech. Without reasonable checks and balances we as a lawful society could quickly find some citizens resisting lawful authority and even rebelling against our constitutional parliamentary system of government. Imagine if foreign power were to secretly light the fuse for something like that to happen. Some of our elected politicians aided by sectors of media (talkback etc), from my observation, seem to foment "false, scandalous, and malicious" statements against parliamentary government and its officials. This type of behaviour can incite hatred against good people seeking to serve society in a just cause. I would counsel anyone like "A bit fed up with it" to be very careful and to treat our democracy as a beautiful flower that must be continually nurtured for it to bloom.

Commenter

Adam Smith

Date and time

February 15, 2013, 6:43AM

Furthermore, I assume Senator Brandis has learnt what 'Society' is? As in a group of persons joined together for a common purpose or by common interest. So I refer to his above quoted Q&A statement. Is he suggesting that because we are born to be free we are free to say anything? Is he arguing that our form of democratic governance doesn't give rights to any of us? It would be interesting to hear Senator Brandis answer to questions of this kind, because his answers may open a window to give us a glimpse as to how the Liberal Party of Australia views Australian society. Of course natural rights are based on the principle that all people by nature have certain rights simply by being human. These rights are higher than any human political system. And it may therefor be only correct to believe that natural rights cannot come from parliamentary governance. However, because our natural rights do not come from governance, parliamentary governance cannot legitimately take them away. And because they do not come from parliament, the government (State & Federal) does not always protect them either. So should a citizen in Australia have the freedom to reflect in a racially derogatory manner upon a fellow citizen? And if so, as seems to be the view of some people, what did we fail to learn from history and what price do we, our children pay because of the indifference as demonstrated by some fellow citizens???

Commenter

Adam Smith

Location

Katoomba

Date and time

February 15, 2013, 7:33AM

Thanks Mr Ackland and Mr Smith,

posting more questions than answers and encouraging people to reflect and form considered and nuanced opinions. Well done. This issue is too important to be botched by ideologues and slogans.

As for natural rights, and natural justice, I've always been intruiged by the position that such things are real and are merely discovered.... as if they exist independently of consciousness.

When you say such rights are "higher" than the state, I tend to see them more grounded in the instincts that we evolved as tribal apes. In that respect they are "lower". :) I suspect for example that chimps have their own sense of natural rights, what is fair etc, even if they haven't conceptualised them.

Commenter

hmm

Date and time

February 15, 2013, 11:06AM

Can we still have New Australians like Nina Culotta. Are we allowed to have Wogs, Bimbos and other real Australian Aussie lingo, or has political correctness completely taken our individuality completely out of the market and yet allowed the B word and the F word to be completely acceptable .

Commenter

Old Wise Voter

Location

Reality Land.

Date and time

February 15, 2013, 4:20AM

I do not have a problem with the "b" or "f" word, but I'd be smacked down by mum if I used those words when talking to her. So here is the question, is James Spigelman surely right when he says "there is no right not to be offended" or is he not right? That question opens up the on-going debate concerning a Bill of Rights for the Australian people to consider.

Commenter

Adam Smith

Location

Katoomab

Date and time

February 15, 2013, 8:19AM

So we are a bunch of racist........nothing new here.

Commenter

Bazza

Date and time

February 15, 2013, 4:35AM

@Bazza. Perhaps you are, but you don't speak for me or any of my friends/family. When you say "we" I assume you're referring to you/your family/your friends.

Commenter

JamesM

Date and time

February 15, 2013, 6:44AM

@James........Do you want me to explain the meaning of sarcasm? If you read my post you would understand that despise racist.

Commenter

Bazza

Date and time

February 15, 2013, 7:19AM

JamesHe is referring to the Australian public at large I don't think he targeted you specifically you are not the centre of the universe.